United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR P DIAMOND (of Counsel) 5 Paper Buildings Temple London EC4Y 7HB


 


JUDGE D PUGSLEY: This case has been listed at a preliminary hearing to see whether the grounds of appeal identify an arguable point of law.
By a decision promulgated on 8 May 1998 the Industrial Tribunal sitting at Bury St. Edmunds decided that the Applicant was not unfairly dismissed; that the Applicant was not protected shop worked and the Tribunal dismissed the claims pursuant to Section 45 and 101 of the Employment Right Act 1996.
The Tribunal set out its findings of fact in paragraph 5 onwards of its decision. In summary the Applicant had from 1982 been employed as a driver until he ceased work on 16 May 1997. He was required to work a total of 47 hours per week which included 7½ hours guaranteed overtime. In practice he worked considerably more overtime. The company were under no obligation to provide such extra overtime although in practice it did so.
When Sainsburys decided to open, lawfully, their stores on a Sunday, management worked to review the terms and conditions of employment in order to implement a preplanned seven day delivery service. After 15 months of protracted negotiations agreement was reached with the unions whereby drivers would work a flexible 50 hour working week. Drivers would have to work 5 out of 7 working days. This would require Sunday working.
The result of their change meant that in large measure the old system of "casual" overtime was extinguished, (see paragraphs 12 to 18 of the Decision). This change in working conditions was accepted by 100 out of 103 of the drivers. It involved sacrifices on the part of the workforce. Management decided that if extra overtime was available it should be offered to those accepting the new arrangement: however, the Tribunal pointed out the need of casual overtime beyond the 50 hours had "virtually" disappeared.
The Applicant together with two other employees refused to accept the new arrangement. He did not wish to work on Sunday. No details are given for his refusal to work save that he had his own personal reasons for that decision. He was given a four month period in which to decide whether to opt in to the new arrangement.
Before us, Mr Diamond, Counsel for the Appellant has properly conceded that the Appellant had no contractual right to work overtime beyond the 7½ hours of guaranteed overtime. The Appellant was not required to work on Sundays. He was still given the same 47 hours work which he worked from Monday to Friday.
What is suggested is that Sunday has a unique status as a day. The effect of the Appellant's refusal to work on Sunday was that he earned substantially less than colleagues who were prepared to work on Sunday. The refusal of Sainsbury's to accommodate the Appellant's desire not to work on Sundays is, it is suggested, a breach of the implied term of mutual trust and confidence.
The Industrial Tribunal rejected this contention. They decided the Company was measured, considered and reasonable in its approach. They pointed out that the new proposal, which entailed sacrifice for the workforce, was endorsed by 100 out of 103 of the drivers.
They pointed out that to allow the Appellant a special position would have been unfair to the overwhelming majority of drivers who had accepted the new proposal. At paragraph 25 of their decision the Tribunal summarise the position that:-

"For there to be constructive dismissal the Applicant must leave in response to a repudiatory breach of contract by the employer. The Applicant has not established by such breach. In so far as there was a breakdown in mutual trust and confidence it was brought about on the mind of the Applicant by his dogged insistence on the righteousness of his position."

Before us Mr Diamond has referred to various dicta which illustrate the special status of Sunday and, has sought to introduce an argument not advanced before the Industrial Tribunal based on Article 120. We must confess the significance of Article 120 was rather lost on us.
The industrial members of the Employment Appeal Tribunal have wide experience of working practice in the haulage industry. Sunday working is rarely popular and that is why it often attracts "double time" in certain industries. Long before the question of Sunday opening of shop became a matter of controversy there was a widespread practice of Sunday working in the haulage industry.
Whilst we have sympathy for those who wish to preserve the unique quality of Sunday the reality is that there is no identifiable error of law in this Tribunal decision.
Mr Diamond has asked us to consider the Tribunal's decision that the Applicant was not a protected shop worker. We consider that the conclusion to which the Tribunal came was right in law. We note that the interpretation contended for by the Applicant was the subject of an amendment in the Parliamentary debate which was rejected. We consider that the Industrial Tribunal accurately construed the relevant legislation.
We wish to make it clear that in no way are we stigmatising the Applicant's decision not to work on Sunday. That was a decision to which he was entitled to come. However for the reasons we have given we do not consider that there is any error of law in the Tribunal Decision which justifies this matter going to a full Tribunal.